Zaman v Minister for Home Affairs

[2019] FCCA 164

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAMAN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 164

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.351, 417

Migration Legislation Amendment (2017 Measures No.3) Regulations 2017 (Cth)
Migration Regulations 1994 (Cth)

Applicant: RUBINA ZAMAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 981 of 2018

Judgment of: Judge Driver

Hearing date: 30 January 2019

Delivered at: Sydney

Delivered on: 30 January 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Saunders of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 981 of 2018

RUBINA ZAMAN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant, Ms Zaman, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 March 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Zaman a Medical Treatment visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 23 January 2019. 

3. Ms Zaman is a female citizen of Bangladesh born 2 October 1977[1] who arrived in Australia on 28 August 2003 as the holder of a Student (TU-574) visa.

   [1] Court Book (CB) 1

4. On 19 June 2017 Ms Zaman applied for a Medical Treatment (Visitor) (class UB) (subclass 602) visa.[2]

   [2] CB 1

5. In response to Question 13 on the visa application form, regarding whether Ms Zaman was applying “on the basis of being a secondary person (ie. member of a family unit) of a person who already holds a subclass 602 visa”, Ms Zaman ticked the box corresponding to “No”.[3]

   [3] CB 2

6. Clause 602.212(6) of the Migration Regulations 1994 (Cth) (Regulations) provided:

   602.212

   ……

   Unfit to depart

   (6)     All of the following requirements are met:

   (a)     the applicant is in Australia;

   (b)    the applicant has turned 50;

   (c)the applicant has applied for a permanent visa while in Australia;

   (d)the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

   (e) the applicant has been refused the visa;

   (f)the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical officer of the Commonwealth.

   (Minister’s emphasis retained)

7. A criterion for the grant of the visa was that Ms Zaman satisfy clause 602.213[4]  of Schedule 2 to the Regulations, which as at the time of the application required as follows:

   [4] The Minister notes that clause 602.13 was amended on 1 July 2017 however the amendment applies only to applications made on or after that date

   602.213

   (1)     Subclause (2) applies if:

   (a)the applicant was in Australia at the time of application; and

   (b)the applicant held a substantive temporary visa at that time; and

   (c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.

   (2)     The substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

   (3)     Subclauses (4) and (5) apply if:

   (a)the applicant was in Australia at the time of application; and

   (b)the applicant did not hold a substantive temporary visa at that time; and

   (c)the requirements described in subclause 602.212(6) are not met in relation to the applicant.

   (4)The last substantive temporary visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

   (5)The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

   (Minister’s emphasis retained)

8. Criterion 3001 of Schedule 3 of the Regulations relevantly provided:

   3001

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   …

   (c) if the applicant:

   (i)     ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)     entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)   the last day when the applicant held a substantive or criminal justice visa; or

   (iv)    the day when the applicant last entered Australia unlawfully; or…

9. The last substantive visa held by Ms Zaman was a UQ-497 visa which expired on 9 January 2008.[5]

   [5] CB 49

10. On 22 June 2017 the application was refused by the delegate on the basis that Ms Zaman’s last substantive visa had expired on 9 January 2008, being more than 28 days prior to the date on which the Medical Treatment visa application was made.  As such, Ms Zaman was not able to satisfy criteria 3001, 3003, 3004 and 3005 of Schedule 3 to the Regulations as required for the grant of the visa under clause 602.213 of the Regulations.[6]

    [6] CB 54-56

11. On 7 July 2017 Ms Zaman applied to the Tribunal for review of the delegate’s decision.[7]

    [7] CB 57

12. On 30 January 2018 Ms Zaman was invited to appear before the Tribunal for hearing on 7 March 2018.[8]

    [8] CB 95

13. On 14 February 2018 Ms Zaman wrote to the Tribunal requesting that the hearing be postponed due to her anxiety, stress and depression.  As part of the request, Ms Zaman attached medical certificates from her treating doctor and psychologist as well as her treatment plan.[9]

    [9] CB 97-107

14. On 20 February 2018 the Tribunal wrote to Ms Zaman to indicate that the request had been carefully considered but had been refused and the hearing would proceed on 7 March 2018.[10]

    [10] CB 109

15. On 7 March 2018 Ms Zaman appeared before the Tribunal for the hearing to give evidence and present arguments.[11] 

    [11] CB 115

16. On 7 March 2018 the Tribunal affirmed the decision under review.[12]

    [12] CB 121-126

Tribunal decision

1. The Tribunal recognised that Ms Zaman was unable to meet the requirements to satisfy clause 602.212(6) as Ms Zaman was not yet 50 years old at the time of the decision.[13]  The Tribunal found that Ms Zaman was in Australia at the time of the application and did not hold a substantive visa at that time.[14]  The Tribunal reasoned that this had the result that she was required to satisfy clause 602.213(4) and (5) of the Regulations, the former requiring Ms Zaman to meet the Schedule 3 criteria 3001, 3003, 3004 and 3005 for the grant of the visa.

   [13] At [9]

   [14] At [11]

2. The Tribunal noted that as Ms Zaman did not meet 602.212(6), Ms Zaman was therefore required to meet the Schedule 3 criteria 3001, 3003, 3004 and 3005 for the grant of the visa.[15]

   [15] At [11]

3. The Tribunal accepted that Ms Zaman’s last substantive visa ceased on 9 January 2008 and that the present visa application was made on 19 June 2017.[16]

   [16] At [13]

4. The Tribunal noted that the relevant day was the last day Ms Zaman held a substantive visa, being 9 January 2008.[17]

   [17] At [14]-[15]

5. The Tribunal found that as the visa application was not made within 28 days of the relevant day, Ms Zaman did not satisfy criterion 3001,[18] and did not satisfy clause 602.213.[19]

   [18] At [16]

   [19] At [17]

6. Having regard to Ms Zaman’s circumstances and the guidelines relating to the Minister’s discretionary power under s.351 of the Migration Act 1958 (Cth) (Migration Act), the Tribunal considered this case should be referred to the Minister’s Department to be brought to the Minister’s attention on the basis that Ms Zaman and her husband have a minor Australian citizen child.[20]

   [20] [19]

The present proceedings

1. These proceedings began with a show cause application filed on 10 April 2018.  The grounds in it are:

   1.The Tribunal applied the law incorrectly and procedure was not fair.

   2.Subclause 602.213(5) has been removed but honourable AAT member did not consider this matter.  Therefore I believe I satisfy 602.213 require merits.

   3.Honourable member did not consider my hearing date change request even though that was recommended by the doctor.

   (errors in original)

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book filed on 4 June 2018.  Only the Minister filed written submissions in advance of today’s hearing. 

3. I invited oral submissions from Ms Zaman this morning.  She referred to her visa history, noting that she came to this country as a student in 2003.  She has had a child here, a son, who is now 14 years of age and at an important stage in his education.  He has acquired Australian citizenship. 

4. This case raises humanitarian considerations and with that in mind the Tribunal referred the matter to the Minister’s Department for possible Ministerial intervention. I understand that the Department declined to refer the matter to the Minister, possibly because an earlier request for Ministerial intervention had been made under s.417 of the Migration Act and had been rejected.[21] 

   [21] Ms Zaman handed up documents relating to that request which I returned to her

5. Ms Zaman’s oral submissions do not advance any arguable case of jurisdictional error by the Tribunal.  The legal position confronting the Tribunal was clear and the Tribunal had no option but to affirm the decision of the delegate. 

6. The Minister’s submissions deal comprehensively with those issues.  I agree with those submissions.

Ground 1

1. Ground 1 does not particularise how the Tribunal incorrectly applied the law or how the procedure followed was not fair.  Without further particulars, this ground is incapable of establishing any error on the part of the Tribunal. 

2. In any event I accept that the Tribunal applied the law correctly:

   a)as Ms Zaman was not 50 years old at the time of the decision, Ms Zaman did not satisfy clause 602.212(6) of the Regulations;

   b)accordingly, Ms Zaman was required to meet the Schedule 3 criteria 3001, 3003, 3004 and 3005 for the grant of the visa pursuant to subclauses 602.213(3) and (5) of the Regulations;

   c)the application was not made within 28 days after the relevant day.  It is not in dispute that the relevant day was the last day Ms Zaman held a substantive visa, being 9 January 2008;[22] and

   d)therefore, the Tribunal was correct to find that Ms Zaman did not satisfy clause 602.213 of the Regulations.

   [22] Under Schedule 3 criterion 3001(2)(c)(iii) of the Regulations

Ground 2

1. Ground 2 alleges that the Tribunal did not consider that subclause 602.213(5) of the Regulations has been removed and contends that Ms Zaman satisfies the clause 602.213 requirements.

2. Subclause 602.213(5) was removed by the Migration Legislation Amendment (2017 Measures No.3) Regulations 2017 (Cth) (the Amendment) which provided as follows:

   Schedule 3 - Subclass 602 (Medical Treatment) visas

   …

   4  Subclause 602.213(5) of Schedule 2

   Repeal the subclause.

3. This legislative amendment does not apply to Ms Zaman’s application for a Medical Treatment visa. The Amendment's transitional provisions inserted Item 6503 of Part 65 of Schedule 13 of the Regulations, which relevantly provides as follows:

   6503  Operation of Schedule 3

   The amendments of these Regulations made by Schedule 3 to the Migration Legislation Amendment (2017 Measures No.3) Regulations 2017 apply in relation to an application for a Medical Treatment (Visitor) (Class UB) visa made on or after 1 July 2017.

   (Minister’s emphasis retained)

4. Item 6503 of Schedule 13 to the Regulations outlines that the amendments to clause 602.213 of the Regulations would only apply to applications made post 1 July 2017. 

5. Ms Zaman’s application was lodged on 19 June 2017 which was prior to the commencement date of the relevant amendment.  Accordingly, clause 602.213(5) of the Regulations applied to Ms Zaman’s application.  The Tribunal was correct to assess the application based on the statutory scheme as at the date the application was lodged.  This ground must fail.

Ground 3

1. The third ground asserts that the Tribunal member did not consider Ms Zaman’s request that the hearing be postponed as it would exacerbate her existing anxiety and stress.

2. This ground does not establish jurisdictional error.  There was no possibility of a different outcome because Ms Zaman was incapable of satisfying the criteria under clause 602.213 of the Regulations, having lodged her visa application more than 28 days after the expiry of her last substantive visa.  On this basis, no prejudice is capable of having been caused to Ms Zaman for the hearing not being postponed.

Conclusion

1. There being no arguable case of jurisdictional error available to Ms Zaman, the appropriate course is to dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and I so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $2,600.  Ms Zaman enquired whether costs could be reduced, but, in my view, the Minister’s claim for costs is already modest having regard to scale costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,600.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       1 February 2019